DATE:  March 13, 1992
CASE NO. 85-WPC-2


IN THE MATTER OF
JOSEPH GUTTMAN,
          COMPLAINANT
v.


PASSAIC VALLEY SEWERAGE
COMMISSIONERS,
          RESPONDENT 1/


BEFORE:  THE SECRETARY OF LABOR


                    FINAL DECISION AND ORDER
                                
    Before me for review is the Recommended Decision and Order
Denying Claim (R.D. and O.) of Administrative Law Judge (ALJ)
John C. Holmes in this case which arises under the employee
protection provision of the Federal Water Pollution Control Act
the FWPCA), 33 U.S.C.  1367 (1988).  The ALJ denied relief on
the ground that Complainant failed to establish protected
activity under the FWPCA, or that any alleged protected activity
was the likely reason for his termination by Respondent.  On
review, Complainant contends that his termination was
discriminatory under the whistleblower statute and that, in any
event, the hearing below violated procedural due process. Because
I find that Complainant was engaged in protected 
[PAGE 2]
activity which likely caused his termination, and that
Respondent's proffered reason for terminating Complainant is
pretextual, relief will be granted.

                       INTRODUCTION
                                
                                
1.   Factual Background

    Respondent (also herein referred to as P.V.S.C.) operates one
of the largest water treatment facilities in the nation, having
been upgraded to a secondary treatment plant in the early 1980's
at a cost of approximately $500 million. 2/  Seventy-five percent
of plant construction costs were paid through federal
appropriations under section 202 of the FWPCA, 33 U. S. C.  1282. 
Complainant was hired by P.V.S.C., effective March 31, 1980, as
Chief of Laboratory and Stream Pollution Control. T. 18.

    The FWPCA requires, as a condition of federal funding, that
applicants adopt a system of billing, or user charges, to
assure that each recipient of waste treatment services pays its
proportionate share of the costs of operation and maintenance
of the waste treatment services.  33 U.S.C.  1284(b)(1)(A). To
comply with this requirement, P.V. S . C., principally through
its Chief Engineer, Mr. Ricci, its Chief of Industrial Waste,
Mr. D'Ascensio, and its Assistant General Counsel, Mr.
Ambrosio, and the accounting firm of Arthur Young & Company,
designed an ad valorem user charge system.  T. 353-354, 446-447. 
Under this system, purportedly approved by EPA and subjected to
public hearings, users were to pay in proportion to both the
volume of water and concentration of dissolved and
undissolved solids to be treated.  T. 272-273, 355.  As part
of its system, P.V.S.C. elected to implement a
self-monitoring user charge system, instead of a treatment
plant monitored system.  T. 358.  Thus, each industrial user
would monitor its own treatment input, with the treatment
plant performing compliance checks of such monitoring.  T.
359.

    A significant component of the self-monitoring system was
Respondent's split sampling requirement, whereby 98 percent of
all

[PAGE 3]
industrial users (about 75 companies) would take daily split
samples, one sample for the user to analyze and the other for
P.V.S.C. to analyze.  T. 361.  If P.V.S.C. obtained a different
analysis from the industrial user, this would operate as a
trigger to scrutinize that user's service more closely.

    Beginning in August 1981, Complainant, as head of the
laboratory, in a memorandum to the Chief Engineer, criticized the
split sample concept because the lab was being flooded with
samples which Complainant contended were unreliable because taken
by the users and not by Respondent's own inspectors.  Complainant
Ex. (CX), App. A-2.  Complainant recommended that Respondent's
inspectors take the sample, which could then be split, on a
yearly, rather than daily, basis.  Id. The Chief Engineer, who
was Complainant's superior, did not act on Complainant's
suggestion and left P.V. S . C. in the fall of 1982 . By that
time Complainant also had written to the Chief of Industrial
Waste, Mr. D'Ascensio, that the spilt sampling method of
monitoring was unreliable and cost excessive by reason of the
excessive number of samples to be analyzed.  Memo of July 12,
1982, CX, App. A-4, Attach. #1.

    After the Chief Engineer left, Complainant wrote to the
Executive Director, Mr. Perrapato, requesting increased
responsibilities for himself, and referring to the self
monitoring user charge system as a mistake which potentially
could have legal and political repercussions.  Memo of November
23, 1982, CX, App. A-3.  Mr. Perrapato was assured by in-house
counsel, Mr. Ambrosio, that the user charge system was legal, and
this opinion, along with Complainant's memorandum, was relayed to
the highest level, the Commissioners.  T. 274. Around this time
the Executive Director with approval of the Commissioners,
appointed Mr. D'Ascensio to oversee the laboratory and supervise
Complainant.  T. 284-285.

    The record shows that Complainant's and Mr. D'Ascensio's
working relationship was extremely volatile, that they disagreed
strongly over the user charge system, and did not generally
communicate productively with each other in any respect.  T. 368-
370.  Mr. D'Ascensio prepared a performance evaluation of
Complainant on February 28, 1984, which was highly critical of
Complainant's job performance and described the situation as
"serious."  Respondent's Exhibit (RX) 3.  Shortly thereafter,
by memorandum of March 23, 1984, to Mr. D'Ascensio (March 23
Memorandum), Complainant alleged that Respondent's user charge
verification system violated the Clean Water Act 3/ and could not
withstand a legal challenge.  CX, App. A-3.

    Respondent's in-house counsel, Mr. Ambrosio, responded to
Complainant's March 23 Memorandum by a memorandum of April 2, 
[PAGE 4]
1984, asking Complainant to identify what statutory provisions
the user charge system violated and otherwise to explain its
legal defects.  CX, App. A-5.  Complainant responded by
memorandum of April 12, 1984, that section 204(b)(13(A) of the
Clean Water Act [33 U.S.C.  1284(b)(1)(A)] was violated because
the user charge system in place did not assure proportionate cost
sharing by system users.  CX, App. A-6.  Mr. D'Ascensio responded
to Complainant's March 23 Memorandum at length in a memorandum
dated April 19, 1984.  RX 4.  Sometime in April 1984, Complainant
tried unsuccessfully to force his way into a Commissioner's
meeting to explain his views on the user charge system.  T. 282.
Complainant was then scheduled to brief the Commissioners on May
15, 1984, at which time he presented his views of the user charge
system.  T. 286; RX 6 (Minutes of Meeting).

    Immediately after the Complainant's March 23 Memorandum, Mr.
D'Ascensio recommended to the Executive Director that Complainant
be terminated.  T. 423.  Mr. D'Ascensio testified that he was
afraid the user charge system was being jeopardized by
Complainant, T. 422, who would not cooperate on defining what
level of difference between company and industrial analyses
was acceptable, who was rejecting as unacceptable a
suspiciously large number of samples and who might otherwise
undermine the integrity and credibility of the system
through his resistance to it.  T. 426-431.  The Executive
Director did not terminate Complainant at that time but
assigned the Personnel Manager, Mr. Santamassino, to take
over supervising Complainant and mediating the difficulties
between Complainant and Mr. D'Ascensio.

    Some six months later, just prior to leaving P.V.S.C., Mr.
Santamassino recommended to the Executive Director a
reorganization in which several departments, including the
laboratory, would be combined under one head.  All the
departments would retain a chief, except the laboratory where the
position of chief would eliminated.  T. 287.  By memorandum of
September 6, 1984, the Executive Director recommended to the
Commissioners that the position of Chief of Laboratory was
unnecessary, based strictly on the needs of the company "and has
nothing to do with individual personalities."  RX 2.  The
Executive Director testified that elimination of Complainant's
job was strictly a cost cutting move, as the position was not
needed.  T. 346.  When asked under oath at the hearing whether it
was a decision just to 
[PAGE 5]
eliminate the job, unconnected to the Complainant, Respondent's
Assistant Counsel, Mr. Ambrosio, responded, "well, it probably
had a connection . . . ."  T. 468-469.  On October 11, 1984, by
Resolution No. 25, the Commissioners accepted the reorganization
recommendation and eliminated the position of Chief of Laboratory
effective November 10, 1984, based on "need and economic
conditions," and terminated Complainant.  Complaint, Attachment
No. 7; T. 288. 2.
 
  Procedural History

    The present action was commenced by the filing of a complaint
by Complainant on December 7, 1984.  The matter was referred for
investigation to the Wage and Hour Division of the Department of
Labor, which, by letter of January 7, 1985, found no merit to the
complaint.  Thereafter, on January 11, 1985, Complainant
requested a hearing with the Office of Administrative Law Judges.

    Prior to the hearing Complainant was encouraged by the ALJ to
be represented by counsel, but Complainant elected instead to
appear pro se.  T. 5.  The hearing was held over a period of 1
1/2 days on February 19 and 20, 1985, at a time when the ALJ was
present at the hearing site for 4 1/2 days to hear this and other
cases.  The two volume hearing transcript exceeds 400 pages of
testimony.  Complainant brought no witnesses to the hearing, T.
495, but testified himself and was subjected to Respondent's
cross-examination.  Respondent's counsel, Mr. Ambrosio, brought
two witnesses to the hearing, Mr. Perrapato, P.V.S.C's            
Executive Director, and Mr. D'Ascensio, Chief of Industrial Waste
and Complainant's former supervisor.  Both of these witnesses
testified and were subjected to cross-examination by Complainant,
and to questioning by the ALJ.  At Complainant's request
Respondent's counsel at the hearing, Mr. Ambrosio, was also
sworn and questioned at length by Complainant and by the
ALJ.

    During the hearing, in response to the development of
Respondent's case, through the testimony of Respondent's
witnesses, Complainant requested that he be permitted to bring
additional witnesses in rebuttal.  Complainant, in this regard,
requested that co-worker Art Martinelli be called, T. 307, 486;
that the lab people and department managers testify, T. 388; that
the former personnel manager, Mr. Santamassino, testify, T. 435,
494; and that all the Commissioners testify, T. 391, 393.  In
response to these many requests, to which Respondent's counsel
objected, the ALJ made several procedural rulings to ensure that
the parties would be afforded a full and fair hearing.  The ALJ
ruled that the record would be held open for 15 days for
Complainant to take depositions or to secure affidavits, 
[PAGE 6]
Respondent waiving any right of cross-examination of Mr.
Santamassino.  T. 390, 392, 395, 486, 489, 497, 499.  The ALJ
also permitted Complainant to bring any witnesses he desired to
the hearing then convened in New York City within the following
two days, February 21 and 22, 1985, for the purpose of
testifying.  T. 390.  Complainant did not avail himself of any of
these opportunities.  The record further reflects that an
attorney, David E. Schwartz, on behalf of Complainant, wrote a
confirmatory letter on March 8, 1985, to the ALJ acknowledging,
pursuant to their prior telephone conversation, that the record
would be held open an additional 15 days from March 8, 1985,
pending Complainant's decision as to additional hearing
requests. 4/ The ALJ acknowledged his verbal order to this
effect in his R.D. and O. at 1.  No further correspondence or
motions were received, id., and the ALJ issued his R.D. and O.
on April 17, 1985.

    The Secretary issued a briefing schedule, duly served on the
parties, on January 25, 1990.  In response thereto Complainant,
acting pre se, filed an initial brief, indicating service of same
on counsel for Respondent.  Respondent filed no pleadings on
review before the Secretary.

                      DISCUSSION
                               
                               
1.   The Prima Facie Case

    A prima facie case is made out by an employee alleging
retaliatory discharge under the whistleblower provision by
showing 1) that the employee engaged in conduct protected by the
FWPCA; 2) that the employer was aware of that conduct and took
some adverse action against the employee; and 3) that the
inference is raised that the protected activity was the likely
reason for the adverse action.  See Dartey v. Zack Co.
of Chicago, Case No. 82-ERA-2, Sec. Order, April 25, 1983
(Dartey), slip op. at 7-8; accord D'Agostino v. B & O
Distribution Service Inc., Case No. 88-STA-11, Sec. Order,
May 10, 1989, slip op.


[PAGE 7]
                                                        
at 4.  See also Mackowiak v.
University Nuclear Systems. Inc., 735 F.2d 1159,
1162 (9th Cir. 1984).  The ALJ limited his analysis of whether
Complainant engaged in activity protected under the FWPCA to the
question of whether Complainant actually took his complaints to
the EPA, or stated his intention to do so in a telephone
conversation with Respondent's counsel, Mr. Ambrosio, in April or
May of 1984.  On this record, there is no evidence that any
actual contact with EPA ever took place, T. 69, 86, and the ALJ
found that even if Complainant had an intention to do so, enough
time had elapsed by the time of Complainant's termination without
his having taken any action to indicate that any intention on
Complainant's part to go public was empty and inconsequential. 
R.D. and 0. at 2. The ALJ thus found that there was no
relationship between Complainant's termination and any alleged
intention to initiate an action with EPA. 5/  Id.     In so
holding, the ALJ noted a split in the circuit courts of
appeals over whether internal complaints involving violations of
environmental laws are protected under the employee protection
provisions of environmental statutes. 6/ Finding Brown &
Root, 747 F.2d at 1029, persuasive, the ALJ held that
Complainant's internal complaints involving alleged
violations of the FWPCA were not protected activity.  I
disagree.

    The paramount purpose of the whistleblower provision of the
FWPCA, regardless of anything to the contrary in Brown &
Root, is the protection of employees, see,
e.g., English v. General Electric Co., 110
S. Ct. 2270, 2277 (1990), a purpose which would be frustrated by
failing to protect from retaliatory action employees who report
violations internally to their employers. As stated in Willy
v. The Coastal Corp., Case No. 85-CAA-l, Sec. 
[PAGE 8]
order, June 4, 1987, slip op. at 3, "[the Secretary] continue[s]
to be persuaded that reporting violations of the environmental
statutes enumerated in 29 C.F.R.  24.1 internally to one's
employer is a protected activity and that Mackowiak and
Kansas Gas & Electric, rather than Brown &
Root, set forth the appropriate resolution of this issue.ll 
See Bivens v. Louisiana Power & Light, Case
No. 89-ERA-30, Sec. Dec. and Order of Remand, June 4, 1991, slip
op. at 4-5; Nunn v. Duke Power Co., Case No. 84-ERA-27,
Sec. Order, July 30, 1987; Poulos v. Ambassador Fuel
Oil Co.  Inc., Case No. 86-CAA-1, Sec. Order, April 27,
1987.  While Mackowiak and Kansas Gas & Electric
construed the employee protection provision only of the Energy
Reorganization Act of 1974, as amended (ERA), 42 U.S.C.  5851,
the employee protection provisions of other statutes whose
language is more similar to the FWPCA have also been construed to
find coverage. NLRB v. Scrivener, 405 U.S. 117 (1972)
(construing Section 8(a)(4) of the NLRA, 29 U.S.C. 
158(a)(4)); NLRB v. Retail Employees Union, Local
876, 570 F.2d 586 (6th Cir.)  (same), cert.
denied, 439 U.S. 819 (1978); Phillips v. Interior
Board of Mine Operations Appeals, 500 F.2d 772
(D.C. Cir. 1974) (construing Section 110(b)(1) of the Coal
Mine Health and Safety Act (Coal Act), 30 U.S.C.  820(b)(1)),
cert. denied, 420 U.S. 938 (1975); Love v.
RE/MAX of America, Inc., 738 F.2d 383 (10th Cir. 1984)
(construing Section 15(a)(3) of FLSA, 29 U.S.C.  215(a)(3)).
7/
    In the present case, Complainant's extensive reporting to
P.V.S.C. officials over a period of years that P.V.S.C.'s
user charge system violated the FWPCA is an activity fully
protected


[PAGE 9]

under the FWPCA. 8/  Complainant consistently asserted to
P.V.S.C. officials that the split sampling method of
monitoring industrial users was meaningless and unreliable
because the industrial users, instead of P.V.S.C., were
taking the samples.
     T. 59, 72, 82-84.  The samples provided to P.V.S.C. could
therefore be anything the user wanted them to be.  As a result,
Complainant contended, Respondent's user charge system could not
assure that system users were paying their proportionate share of
waste treatment services as expressly required under the FWPCA at
332 U.S.C.  1284(b)(1)(A).  Under this provision, federal grant
applicants such as P.V.S.C. must assure proportionate cost
sharing by system users as a condition for the approval by EPA of
construction grants for treatment works.  As such, those persons
whose negative impact on the environment is substantial will pay
substantially, rather than unduly burdening those whose impact on
the environment is only minimal.  Although Respondent's treatment
plant had already been constructed, Complainant alleged that the
user charge system subsequently developed and in place after
start up of the facility did not satisfy the FWPCA's
requirements.  T. 23, 43, 64, 81.

[PAGE 10]
         That Complainant's views in this regard may have
been shown on this record to be wrong, narrow, misguided,
or, as the ALJ found, "ill-formed and not based on direct
knowledge,"  R.D. and 0. at 3, does not render
Complainant's communication of his views unprotected. 
Moreover, the ALJ erred as a matter of law in holding that only
valid complaints of employer violations
are protected.  The FWPCA protects employees who allege
employer violations of the Act, even if those allegations
are not ultimately substantiated.  See Aurich,
slip op. at 4-5, see also Love v. RE/MAX of
America Inc., 738 F.2d 383, 385 (10th Cir. 1984) (Title
VII cases); Munsey v. Federal Mine Safety and Health
Review Comm'n, 595 F.2d 735, 742-743 (D.C. Cir. 1978)
(NLRA and Coal Act); Allen v. Revco D.S., Inc., Case
No. 91-STA-9, Sec. Final Dec. and Order, Sept. 24, 1991,
slip op. at 6 n.3 (Surface Transportation Assistance Act). 
Were only actual and provable violations protected,
employees could rarely be assured that the apparent
violations they identify for reporting purposes would
ultimately withstand the scrutiny required to gain protected
status.  Such a rule would so chill the reporting of
violations as to virtually eviscerate the statute. 
Moreover, I note that in the present case, however misguided
Complainant's allegations may have been shown to be, there
was never any contention that they were frivolous or brought
in abuse of the statute.  Rather, the record shows that they
were pressed by the Complainant in good faith as his very
strongly and seriously held beliefs.  I find that
Complainant's communication of these alleged violations to  
P.V.S.C. officials was fully protected under the whistleblower
provision of the FWPCA.  33 U.S.C.  1367.

    As stated previously, in order to establish a prima facie
case of discriminatory action under the FWPCA, Complainant must
show not only that he engaged in protected conduct, but also that
the employer was aware of the conduct and took adverse action
against him, and Complainant must raise an inference that the
protected activity was the likely reason for the adverse action.
Dartey, slip op. at 6-9.  The record clearly shows that
Respondent knew of Complainant's protected conduct and took
adverse action in abolishing Complainant's job and terminating
him. 

[PAGE 11]

    I find that Complainant also has raised the inference
that his protected activity was the likely reason for the
adverse action.  Mr. D'Ascensio testified that he felt the
Respondent's entire user charge system was in jeopardy
because of Complainant's opposition to that system.  T.
422-427.  He expressed fear that P.V.S.C.'s credibility and
cooperative relationships with industrial users
would be compromised, leading to abuse of the system.  T.
427-429.  He attributed this concern to Complainant's
ability, as head of the laboratory, to fail to provide a
sufficient number of sample analyses to maintain the
credibility with users that a self-monitoring system
required. in short, Complainant was thought to pose a
significant and substantial threat to Respondent's entire system
of billing, in which Respondent had invested extensive           
resources over a long period of time.  I find Respondent's
motivation to neutralize Complainant's potentially
destructive impact on the user charge system was more than
sufficient to raise the necessary inference of causation.    

 2.   Rebuttal of the Prima Facie Case

    In the rebuttal phase of the case, Respondent has the burden
of production 10/ to present evidence that the alleged adverse
treatment was motivated by legitimate, nondiscriminatory reasons.
If so produced, then Complainant has the opportunity to show that
the proffered reason was not the true reason for the employment
decision, but a pretext.  Complainant may show this by
establishing that a discriminatory reason more likely motivated
Respondent, or by showing that the proffered explanation is
unworthy of credence.  Dartey, slip op. at 8.

    Respondent met its burden of production by its proffer that
the elimination of Complainant's  was based solely on economic
factors, to save $46,000 per year for a position that was not
needed.  Memo of C. Perrapato, Exec. Dir., of September 6, 1984,
RX 2.  The Executive Director testified that employment positions
with P.V.S.C. were continually being pared since 1980 in order to
lower budget costs and, ultimately, to lower costs to system
users.  T. 267-269.  He further stated that the elimination of

[PAGE 12]

Complainant's position was based strictly on the lack of need
for the position and the cost savings in dollars.  T. 346. 
Finally, the actual implementing document, Resolution No. 25,
voted unanimously by the Commissioners, stated that
"elimination of this position is based upon need and economic
conditions." Complaint, Attachment No. 7.

    The evidence, however, persuasively shows that Respondent's
proffered reason is not worthy of credence, but is pretextual.
The memorandum of P.V.S.C's Executive Director recommending the
elimination of Complainant's job to the Commissioners stated that
"the elimination of the position is based strictly upon the needs
of Passaic Valley and has nothing to do with individual
personalities."  RX 2.  I conclude from this statement, which the
ALJ correctly regarded as "protesting too much," R.D. and O. at
4, that the reorganization recommendation had at least something,
if not everything, to do with Complainant's individual
personality, which was principally manifested by his highly vocal
and unyielding objections to Respondent's user charge system.
Further, P.V.S.C.'s Assistant Counsel, Mr. Ambrosio, conceded in
his testimony that the decision to terminate Complainant's office
"probably had a connection" to Complainant himself, as opposed to
the reasons the Executive Director proffered.  T. 468-469.
Finally, I note that in the reorganization combining the four
departments, 12/ the only supervisory chief eliminated was
Complainant. 13/  For these reasons I conclude that
Respondent's proffered explanation that the elimination of
Complainant's job was based strictly on the need of
the job and on economic conditions is not worthy of
credence, but is pretextual. Accordingly, I find that
Complainant has carried his burden of persuasion that he was
discriminated against 
[PAGE 13]
in his employment for activity protected under the FWPCA.    

3.   Dual Motive Doctrine

    As an alternative basis for the denial of recovery in the
case, the ALJ found under the dual motive doctrine propounded in
Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274 (1977), that even if Complainant had
established a prima facie case, Respondent rebutted any such
presumption.  R.D. and 0. at 4.  Although Complainant has met his
ultimate burden of persuasion through the finding that
Respondent's proffered reason for discharging him was pretextual,
a determination of the dual motive issue now is consistent with
principles of adjudicative economy.  On this record,
even were I to credit P.V.S.C.'s economics explanation
as a partial motive for the discharge, I believe that
under the dual motive doctrine Complainant must prevail.

    The dual motive doctrine is implicated when it is found
that the employer's adverse action against the employee was
motivated by both prohibited and legitimate reasons,
i.e., that the employer had dual motives.  Dartey slip
op. at 8-9; see Mt. Healthy, 429 U.S. at 287;
Mackowiak, 735 F.2d at 1163; Consolidated Edison. 673 F.2d at
62-63.  If such is the case, the employer, in order to avoid
liability, has the burden to show by a preponderance of the
evidence that it would have reached
 
[PAGE 14]

the same decision as to the employee's dismissal even in the
absence of the protected conduct. 15/  Dartey, slip op. at
9; Mt. Healthy, 429 U.S. at 287; Mackowiak, 735
F.2d at 1164; Consolidated Edison, 673 F.2d at 63.  In
dual motive cases, the employer bears the risk that the influence
of legal and illegal motives cannot be separated.
Mackowiak, 735 F.2d at 1164.
 
    In his analysis of dual motive, R.D. and 0. at 4, the ALJ
concluded that Complainant's underlying motivation for alleging
violations was "job and ego, rather than public pollution
protection oriented. 16/  Noting that Respondent attempted to
deal openly and reasonably with Complainant's
recommendations, the ALJ concluded that there was no evidence
that Complainant's discharge was taken either to retaliate
for Complainant's unproven intent to take action before the
EPA or to conceal any wrongdoing.  The ALJ concluded further
that a personnel evaluation was made in the reorganization
move, despite Respondent's protests to the contrary, but that
Respondent had every right to make such an evaluation.

    I cannot accept the ALJ's analysis.  First, I note that it is
not Complainant's underlying motive in reporting violations of
the FWPCA that must be established and considered.  The FWPCA
operates to protect an employee's conduct in reporting violations
of the statute notwithstanding his motives.  Cf. Assistant
Secretary and Moravec v. HC & M Transportation Inc., Case
No. 9O-STA-44, Sec. Dec. and Order of Remand, Jul. 11, 1991, slip
op. at 6 n.6.  Further, under the dual motive doctrine, it is
Respondent's motivation that is under scrutiny, not
Complainant's, because upon finding that Respondent's action was
motivated by legitimate and illegitimate reasons, it must be
ascertained whether Respondent has shown that the same decision
as to Complainant's discharge would have been reached even in the


[PAGE 15]

absence of Complainant's protected conduct.  See,
e.g., Price Waterhouse, 490 U.S. at
248-255.  Further, in concluding that it was not shown that
Respondent's adverse action was in retaliation for Complainant's
protected conduct, 17/ because Respondent dealt openly with
Complainant's recommendations, the ALJ has reversed the
burdens. It is not for Complainant to prove anew the
presence of retaliatory motive in a dual motive analysis,
but for Respondent to separate the influence of both motives
and to show that Complainant would have been discharged even
if protected activity had not occurred. Respondent did not
meet that burden.  Respondent denied (except for the
concession extracted from Mr. Ambrosio, supra at 16)
that it was motivated, even in part, to discharge
Complainant by reason of his protected conduct.  Respondent
chose to rely solely upon this denial and thus made no
attempt to show that it would have discharged Complainant
even in the absence of such conduct. 18/  As stated in
N.L.R.B. v. Transportation Management Corp.,
462 U.S. 393 (1983):

     The employer is a wrongdoer: he has acted out of a motive
     that is declared illegitimate by the statute. It is fair
     that he bear the risk that the influence of legal and
     illegal motives cannot be separated, because he knowingly
     created the risk and because the risk was created not by
     innocent activity, but by his own wrongdoing.

462 U.S. at 403.  Simply put, the legitimate and illegitimate
motives have not been sorted or separated and it has not been
shown that Complainant's job would have been legitimately
eliminated even in the absence of protected conduct. 

[PAGE 16]
Thus I find that if this case is examined under the dual motive
analysis, Complainant's discharge was discriminatory and is
subject to remedy under the statute.
                             REMEDY

    Pursuant to 33 U.S.C.  1367(b) and 29 C.F.R.  24.6(b),
it is ORDERED that:

    1.   Respondent shall take affirmative action to abate the
violation including:  reinstating Complainant to a position
substantially equivalent to the one he held when he was
discharged on November 10, 1984 (assuming that Complainant
remains willing and available to work).

    2.   Respondent shall pay Complainant back pay from November
10, 1984, to the date of reinstatement, less interim earnings (if
any) and periods (if any) when Complainant was unavailable for
work because of illness, disability or other reasons.

    3.   Back pay as computed above shall include all benefits to
which Complainant would have been entitled had he not been
discharged.

    4.   Back pay as computed above shall include
interest commencing from the date of discharge on November
10, 1984, and continuing to the date of reinstatement at the
rate continuously then in effect under 26 U.S.C. 
6621(a)(2), the underpayment rate.  See, e.g.,
Clinchfield Coal Co. v. Federal Mine Safety and
Health Comm'n, 895 F.2d 773, 778-780 (D.C. Cir.
1990).

    Complainant's request for compensatory and punitive damages
is denied. 19/
   
  SO ORDERED.

               LYNN MARTIN
               Secretary of Labor

Washington, D.C.
                      




[ENDNOTES]

1/ The administrative law judge's designation of the captioned
parties as (Claimant'' and "Employer" is hereby modified to
"Complainant" and "Respondent."  29 C.F.R.  24.4 (1990).

2/ As a secondary treatment plant over 90 percent of pollutants
are removed, whereas formerly, as a primary treatment facility,
only 10-l5 percent of pollutants were removed.  Hearing
Transcript (T.) 261.

3/ That is, the Federal Water Pollution Control Act.

4/ The attorney's letter of March 8, 1985, makes no mention of
participation by Complainant ln any settlement negotiations, or
efforts regarding Complainant's rehire by P.V.S.C.  Although the
Executive Director testified at the hearing that he would
recommend to the Commissioners that Complainant be rehired as a
chemist's helper, T. 318, 344l if Complainant wanted such a
position, there is no record evidence that this idea was pursued
in any manner.

5/ Because I hold infra that Complainant's internal
complaints to P.V.S.C. officials regarding the user charge system
constitute protected activity, it is not necessary to make any
findings concerning Complainant's alleged intent to report
violations to the EPA.

6/ The ALJ cited only Brown & Root. Inc. v. Donovan,
747 F.2d 1029 (5th Cir. 1984), holding that internal
complaints are not protected.  At the time of the ALJ's R.D.
and 0., circuit court decisions holding that
internal complaints constitute protected activity were
Mackowiak v. University Nuclear Systems. Inc., 735 F.2d
1159 (9th Cir. 1984), and Consolidated Edison Co. of N.Y.
v. Donovan, 673 F.2d 61 (2d Cir. 1982).  Since then
another court of appeals has held internal complaints protected. 
Kansas Gas & Electric Co. v. Brock, 780 F.2d 1505
(l0th Cir. 1985), cert. denied, 478 U.S. 1011
(1986).

7/  My holding herein that Complainant reported alleged
violations of the FWPCA internally to P.V.S.C. officials
sufficiently establishes as a matter of law that Complainant
engaged in protected activity.  I note, moreover, notwithstanding
any differences between the FWPCA and the ERA, that my holdings
appears consistent with Brown & Root. Inc. v. Donovan, 747
F.2d 1029, 1035 (5th Cir. 1984), which held that the ERA protects
employees who provide competent government officials with direct
information.  P.V.S.C. is a public agency in the State of New
Jersey whose commissioners are appointed by the governor and
confirmed by the state senate.  The record shows that Complainant
reported violations not only to his immediate superiors, but
also, directly and indirectly, to the full commission, which,
having some responsibility under the FWPCA, see,
e.g., 33 U.S.C. 1365(h), 1370, could be viewed as a
"competent organ of government" within the meaning of Brown &
Root, 747 F. 2d at 1036.

8/ Because Complainant's reporting of violations was extensive I
need not determine precisely when it commenced.  Although it was
not until March 23, 1984, that Complainant identified the Clean
Water Act as the statute being violated, he had described the
user charge system as subject to "legal repercussions" in his
earlier memorandum of November 23, 1982. See Aurich
v. Consolidated Edison Co. of N. Y. . Inc., Case No.
86-CAA-2, Sec . Order, April 23, 1987 (Aurich) (complaint
about even possible violations of Clean Air Act protected).

9/ Respondent never contended, however, that its decision to
eliminate Complainant's position as Chief of the Laboratory was
based, even in part, on Complainant's job performance.

10/  The ultimate burden of persuasion of the existence of
intentional discrimination rests with Complainant. 
Dartey, slip op. at 8.

11/  I emphasize that the ALJ, too, determined that Respondent's
allegation that Complainant's termination was due entirely to a
reorganization which eliminated his job must be taken "with a
large grain of salt."  R.D. and 0. at 4.

12/  Process Control, River Inspectors, Industrial Waste and
laboratory and Pollution Control.  T. 287.

13/  Contrary to Complainant's assertion on appeal that his job
as Chief of the Laboratory was not really abolished but filled
with another person, Claimant's Brief, p. 8-9, the record shows
that in the reorganization, Mr. Douglas Borgatti, Ph.D., formerly
Chief of Process Control, was placed in charge of all four
departments.  T. 287.  As such, Mr. Borgatti assumed the duties
of Chief of the Laboratory and other supervisory duties as well.
It follows that the position of Chief of the Laboratory was
abolished.

14/  In view of my disposition of this issue, I do not address in
detail Complainant's allegations that he was denied due process
at the hearing below.  The facts recounted supra at pp.
7-9 demonstrate that Complainant was afforded a full and fair
hearing and all due process rights provided by law.

15/  The Supreme Court has affirmed this approach to the dual
motive analysis in Price Waterhouse v. Hopkins, 490 U.S.
228, 109 S. Ct. 1775 (1989).

16/  Although the ALJ refers in this regard to the investigative
finding of the Compliance Officer, R.D. and 0. at 4, the ALJ's
consideration of the case is de novo.  See Smith v.
Tennessee Valley Authority, Case No. 87-ERA-20, Sec.
Order, April 27, 1990, slip op. at 4 n.2.

17/  As discussed above, the ALJ impermissibly narrowed the scope
of Complainant's protected conduct to his alleged intent to go
public to the EPA.

18/ I find no basis in the record for the ALJ's finding that a
"personnel evaluation" was made in the reorganization in which,
as the ALJ implies, Complainant was passed over in favor of Mr.
D'Ascensio.

19/  Complainant's request for compensatory and punitive damages
is made for the first time on review before the Secretary. 
Punitive damages are not allowable absent express statutory
authorization and Section 507 of the FWPCA, 33 U.S.C.  1367,
contains no such authorization.  Although compensatory damages
are allowable pursuant to 29 C.F.R.  24.6(b)(2), my decision must
be based on the record and the recommended decision of the ALJ. 
29 C.F.R. 24.6(b)(1).  Complainant, who bears the burden on the
issue, never requested compensatory damages in the proceedings
below either in the pleadings he filed or at the hearing, nor did
he introduce into the record any evidentiary basis upon which
such an award could be made.  In this posture, I conclude that
any request for compensatory damages in this case has been
waived.